Introduction: It is well established that Title VII of the Civil Rights Act does not apply to Tribal Nations. The Act specifically states that the term employer does not include "an Indian tribe . . . ."1 Whether the Age Discrimination in Employment Act (ADEA)2 applies to tribes, however, is less established. In Williams v. Poarch Band of Creek Indians,3 the United States Court of Appeals for the Eleventh Circuit recently held that, regardless of whether tribes can be held subject to the ADEA as a statute of general applicability, Congress did not waive tribal sovereign immunity under the Act. Thus, a plaintiff may not sue a tribe under the ADEA.
Procedural Background: The plaintiff, an employee of the Poarch Band of Creek Indians Health Department ("Plaintiff"), filed a complaint in the United States District Court for the Southern District of Alabama, alleging that she was discriminated against in violation of the ADEA.4 The Poarch Band of Creek Indians moved to dismiss the claim for lack of subject matter jurisdiction, based on tribal sovereign immunity. The district court granted the dismissal and Plaintiff appealed the decision to the Eleventh Circuit.
Argument on Appeal: Plaintiff relied on a statutory construction argument, arguing that the difference in textual language between the ADEA and Title VII—after which the court acknowledged the ADEA appears to be patterned—indicates Congress' intent to abrogate tribal sovereign immunity by the ADEA.5 Specifically, the original text of Title VII stated that the term "employer" does not include "an Indian tribe, or a State or political subdivision thereof." Although the text of the ADEA uses similar language in its description of "employer," it does not specifically mention tribes. Plaintiff argued that, because Congress did not explicitly exclude tribal nations, the court should conclude that Congress intended to abrogate tribal sovereign immunity from actions under the ADEA.6
The Eleventh Circuit's Decision: The Eleventh Circuit rejected Plaintiff's argument. In holding that the ADEA does not abrogate tribal sovereign immunity, the Eleventh Circuit stated that no such intent can be drawn from a lack of reference to Indian tribes in the statute. The court stated that this was far from the "clarion call of clarity" that it has previously required to show an abrogation of tribal sovereign immunity, further stating that "[a]mbiguity is the enemy of abrogation." 7 The court clarified that, although tribes may be subject to a statute of general applicability, this does not automatically provide a right to sue the tribe for a violation of the statute: "The difference between being subjected to the requirement of a statute and the right to commence a suit demanding compliance with (or damages for violations of) that same statute may be razor-thin, but it is a distinction that has been acknowledged consistently." 8 The court also concluded that its holding is aligned with other jurisdictions, including the Tenth, Second, and Eighth Circuits.9
Takeaways: The affirmation of the district court's dismissal shows a continued preference towards tribal sovereign immunity, absent very clear wording by Congress or a waiver by the tribe. This reluctance to agree with arguments that attempt to evade the defense of sovereign immunity is consistent with recent decisions in other jurisdictions.10 While a Tribal Nation may be subject to a statute of general applicability, such as the ADEA, a right to sue under that statute needs to be directly stated. It is possible that, even if a statute explicitly states that it applies to tribes, without a clear intent by Congress to abrogate sovereign immunity, the right to sue a tribe under that same statute may still be unavailable.